Opinion.. Habib Al-Mulla writes about internal threats and aircraft security after the "Fly Dubai" incident

This article is written by Emirati lawyer and writer, Dr. Habib Al-Mulla, managing partner of the "Habib Al-Mulla & Partners" law firm. The opinions expressed below reflect the author's views and do not necessarily represent the views of the Ufaq News Network.

In the aviation world, many security and safety regulations were not initially drafted in legislative halls, but were written after a disaster revealed a gap that the aviation system did not see clearly. After the September 11 attacks, the concept of aviation security changed radically.

The danger was no longer just in hijacking the aircraft, but in the possibility of using the aircraft itself as a weapon. This necessitated fortifying the cockpit doors and establishing special protocols for entering it.

Annex 6 of the Chicago Convention requires passenger transport aircraft with a maximum takeoff mass exceeding 45,500 kg or with a seating capacity of more than 60 seats to be equipped with a cockpit door designed to withstand small arms fire, shrapnel, and forced entry. Then came the Germanwings disaster in 2015, which revealed a serious paradox in the very procedure designed to protect the cockpit.

The co-pilot exploited the captain's absence from the cockpit, locked the fortified door, and prevented the captain from returning, then directed the aircraft towards the French Alps, killing all 150 people on board. The door designed to prevent an intruder from entering was the same door that prevented the captain from returning to save the aircraft.

After this incident, a non-binding rule was adopted requiring two authorized persons to be present in the cockpit during flight. In the case of FlyDubai flight FZ1073, the UAE Attorney General announced that investigations revealed that the co-pilot attempted to carry out a terrorist act, assaulted the captain inside the cockpit using an emergency axe, and tried to take control of the aircraft's controls, with investigations ongoing to determine the motives, circumstances, and potential connections.

The first reaction might be to question the emergency axe, whether its location or method of securing it should be changed. While these questions are legitimate, they do not address the core of the problem.

The pilot sitting in front of the controls does not need an axe to threaten the aircraft, as demonstrated by Germanwings. Therefore, the real danger is broader than the storage location of a specific tool.

It relates to how to manage the internal threat when the source of danger is someone from within the most secure areas of the aircraft. This is the direction that international aviation law is indeed heading towards.

In November 2019, the ICAO Council adopted Amendment 17 to Annex 17 on aviation security, which strengthened measures related to internal threats, including security background checks, vulnerability assessments, information sharing, access controls, and screening of non-passengers. The incident involving FlyDubai flight FZ1073 adds a more challenging dimension.

The threat here did not come from an employee trying to bypass a security barrier to reach the cockpit, but from a person whose presence inside it was legitimate and required in the first place. Therefore, any serious review after the incident should not stop at the emergency axe, but should include the psychological and security assessment of the flight crews, support and reporting programs, mechanisms for detecting dangerous behavioral changes, and control procedures within the cockpit if one of the crew members themselves becomes a source of danger.

There is also an important legal contractual aspect that should not be reduced to operational safety rules. The Tokyo Convention of 1963 establishes the aircraft's state of registration as a primary basis for jurisdiction over crimes occurring on board.

The aircraft in this incident is registered in the United Arab Emirates, which is why the UAE Public Prosecution confirmed the jurisdiction of the UAE judicial authorities to investigate, even with the incident occurring outside the national territory. The Montreal Convention of 1971 criminalizes acts of violence against a person on board an aircraft in flight when such acts endanger the safety of the aircraft, and it also establishes a framework for jurisdiction and international cooperation in prosecuting these crimes.

The UAE has been a party to the convention since 1981. If an attempt to take control of the aircraft is proven, then the Hague Convention of 1970 concerning unlawful seizure of aircraft also becomes directly relevant, as it deals with the seizure or exercise of control over an aircraft by force or threat.

It is also necessary to distinguish between criminal investigation and technical investigation. The former examines the crime, responsibility, and punishment, while the technical investigation is governed by the system of Annex 13 of the Chicago Convention, and its goal is to prevent the recurrence of the incident rather than to determine criminal liability.

According to the location of the incident, the country with the primary role in the technical investigation is determined, with rights of participation for the country of registration, the country of the operator, the country of design, and the country of manufacture. The deeper implication here is that aviation safety is always evolving through a painful paradox.

Every security barrier that solves one problem may reveal another problem. After September 11, the cockpit door was fortified to prevent an attacker from entering, and in Germanwings, the same door prevented the captain from returning.

It was then said that having two people in the cockpit reduces the risk of isolation, and here we are faced with an incident that reminds us that danger can exist within the cockpit itself. Therefore, the real challenge for the law is not to build a system that assumes that humans will not err or deviate, but to build a system that can withstand errors and deviations without collapsing.

Complete security is an illusion, because every system ultimately requires a degree of trust in humans. However, the function of the law is not to eliminate trust, but to prevent the betrayal of that trust from turning into a disaster.